Allison v. Kyle, No. 95-50433

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GARWOOD, WIENER and PARKER; PER CURIAM
Citation66 F.3d 71
PartiesKendall M. ALLISON, Plaintiff-Appellant, v. Jack KYLE, Chairman, Board of Pardons and Paroles; Melinda Bozarth, Division Director, Texas Board of Pardons and Paroles, Defendants-Appellees. Summary Calendar.
Docket NumberNo. 95-50433
Decision Date21 September 1995

Page 71

66 F.3d 71
Kendall M. ALLISON, Plaintiff-Appellant,
v.
Jack KYLE, Chairman, Board of Pardons and Paroles; Melinda
Bozarth, Division Director, Texas Board of Pardons
and Paroles, Defendants-Appellees.
No. 95-50433
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Sept. 21, 1995.

Page 72

Kendall M. Allison, Huntsville, TX, pro se.

Appeal from the United States District Court for the Western District of Texas.

Page 73

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Kendall M. Allison (Allison), a Texas state prisoner proceeding pro se and in forma pauperis (IFP), filed this civil rights suit pursuant to 42 U.S.C. Sec. 1983 against Jack Kyle, Chairman, Texas Board of Pardons and Paroles, and Melinda Bozarth, Division Director, Texas Board of Pardons and Paroles. Allison alleged that application of the 1987 and 1992 parole review procedures violated the Due Process Clause and that the change in rules governing the scheduling of parole reconsideration hearings violated the Ex Post Facto Clause. Allison sought a declaratory judgment stating that he was being denied due process and an injunction ordering the defendants to review him for parole annually. He did not seek damages. A magistrate judge recommended dismissing Allison's suit, with prejudice, as frivolous pursuant to 28 U.S.C. Sec. 1915(d). Allison objected to the magistrate judge's report and recommendation. Adopting the magistrate judge's report and recommendation, the district court dismissed Allison's suit pursuant to section 1915(d). Allison filed a timely notice of appeal.

A complaint filed IFP may be dismissed as frivolous if it lacks an arguable basis in law or fact. 28 U.S.C. Sec. 1915(d); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994). A complaint lacks an arguable basis in law if it is "based on an indisputably meritless legal theory," such as if the defendants are clearly immune from suit or if the complaint alleges the violation of a legal interest that clearly does not exist. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). This Court reviews a section 1915(d) dismissal for abuse of discretion. Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.1993).

The initial question is whether Allison's claims are cognizable under section 1983. "Section 1983 is an appropriate legal vehicle to attack unconstitutional parole procedures or conditions of confinement." Cook v. Texas Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir.1994). However, if a prisoner is challenging the result of a specific defective parole hearing or is challenging a parole board's rules and procedures that affect his release and resolution would automatically entitle him to accelerated release, then the challenge must be pursued by writ of habeas corpus. Id. The distinction is between claims that would "merely enhance eligibility for accelerated release and those that would create entitlement to such relief." Id. (citation omitted). A claim that has an indirect impact on whether a claimant eventually receives parole may still be cognizable under section 1983. Id.

Allison stated in his complaint that he was not alleging that his conviction was unlawful and was not seeking a speedier release from confinement. He is seeking annual parole hearings in the future, and he is not seeking monetary damages. Allison is seeking to have the Parole Board comply with what he contends are due process and ex post facto requirements in its parole review procedures. It appears that a favorable determination on these issues would not automatically entitle Allison to accelerated release. Therefore, his claims are properly raised under section 1983.

Allison asserts that he is entitled to annual parole review hearings. Liberally construed, Allison's brief argues that new parole review procedures deny him due process. He asserts that the Board reviewed his record...

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369 practice notes
  • Nelson v. S.C. Dep't of Soc. Servs., Civil Action No.: 4:15-cv-2607-RBH-TER
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 30, 2015
    ...legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Allison v. Kyle, 66 F.3d 71 (5th Cir.1995). This Court is required to liberally construe pro se documents, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (......
  • Covarrubias v. Wallace, Civil Action No. 6:12cv156.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • November 6, 2012
    ...no constitutional right to release on parole in the State of Texas. Creel v. Keene, 928 F.2d 707, 708–09 (5th Cir.1991); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir.1995). Under these circumstances, the loss of good time credits do not affect a constitutionally protected right, but only the “m......
  • Kossie v. Crain, C.A. No. C-09-008.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 11, 2009
    ...interest in parole, however, is entirely speculative, and as such, an inmate has no constitutional expectancy in parole. Allison v. Kyle, 66 F.3d 71, 74 (5th Cir.1995) (per curiam) (citations omitted); see also Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir.1995) (per curiam) (citations omitted)......
  • Joyner v. Patterson, C/A No. 0:13-2675-DCN-PJG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 6, 2014
    ...§ 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327; Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995). This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complain......
  • Request a trial to view additional results
369 cases
  • Nelson v. S.C. Dep't of Soc. Servs., Civil Action No.: 4:15-cv-2607-RBH-TER
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 30, 2015
    ...legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Allison v. Kyle, 66 F.3d 71 (5th Cir.1995). This Court is required to liberally construe pro se documents, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (......
  • Covarrubias v. Wallace, Civil Action No. 6:12cv156.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • November 6, 2012
    ...no constitutional right to release on parole in the State of Texas. Creel v. Keene, 928 F.2d 707, 708–09 (5th Cir.1991); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir.1995). Under these circumstances, the loss of good time credits do not affect a constitutionally protected right, but only the “m......
  • Kossie v. Crain, C.A. No. C-09-008.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 11, 2009
    ...interest in parole, however, is entirely speculative, and as such, an inmate has no constitutional expectancy in parole. Allison v. Kyle, 66 F.3d 71, 74 (5th Cir.1995) (per curiam) (citations omitted); see also Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir.1995) (per curiam) (citations omitted)......
  • Joyner v. Patterson, C/A No. 0:13-2675-DCN-PJG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 6, 2014
    ...§ 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327; Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995). This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complain......
  • Request a trial to view additional results

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